Watchdog or Guardian of the UN Drug Control Conventions?

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4certain extent, however, dependent upon the Board’s potential toinvoke its formal powers. These have their origin in Article 14 of theSingle Convention and constitute a range of actions that increase inseverity depending upon the responses of national Governments toINCB requests and proposals.Accordingly, if, under certain conditions, “the Board has objectivereasons to believe the aims of this Convention are being seriouslyendangered by reason of the failure of any Party, country or territoryto carry out the provisions of this Convention” the INCB has thelegal right to propose confidential consultations with and request explanationsfrom the Government concerned. Furthermore, if “withoutany failure in implementing the provisions of the Convention, aParty or a country or territory has become, or if there exists evidenceof a serious risk that it may become, an important centre of illicitcultivation, production or manufacture of, or traffic in or consumptionof drugs, the Board has the right to propose to the Governmentconcerned the opening of consultations.” Within this context, theBoard may call upon the Government concerned to adopt “remedialmeasures” or propose that the Government undertake a study of theissue in question with a view to indicating and carrying out necessaryremedial measures. If the Board concludes that the Governmentconcerned has given unsatisfactory explanations, failed to adoptnecessary remedial measures or that “there is a serious situation thatneeds co-operative action at the international level with a view toremedying” it may call the matter to the attention of the Parties ofthe Convention, ECOSOC and its CND. Under Article 14 failureto resolve a problem in any other way could, after considering thereports of the Board and of the CND if available, lead ECOSOCto draw the attention of the UN General Assembly to the matter 3 .The consultation process is a serious matter for nation states. Forexample, the Board is currently in consultations with Afghanistan onthe drug control situation in the country having invoked Article 14of the Single Convention in 2000. This fact is published within theINCB’s annual reports and therefore well publicized.backed down. According to Herbert Schaepe, Secretary of the INCBbetween 1991-2004, “Ultimately the issue was solved because thepressure was such that the country did not want to be named atthe Economic and Social Council as being in breach of the treaty”(Mann, 1999). While not formally moving to sanction Australia, theINCB also let it be known that the country could ultimately face aninternational embargo of its opiate exports if it did not reconsiderits position on heroin injecting rooms in the late 1990s; a significantconsideration bearing in mind the lucrative legal Tasmanianopium crop. The INCB’s stance certainly created confusion at thenational level, and consequently a delay in the implementation ofthe intervention. As Neil Boister notes, “Although these powers[regarding sanctions] have never been used, they do representpotentially powerful instruments for enforcing observation of theobligations in the early drug conventions.” This is particularly thecase since the INCB decision cannot be overturned by a higher body(Boister, 2001). Indeed, it is these powers that give the INCB both aprosecutorial and quasi-judicial role.The Board clearly then occupies a central place within the internationaldrug control system. It not only has the responsibility tomonitor treaty compliance, but also the authority to report perceivedinfractions to influential bodies within the UN and consequentlyexert significant pressure upon nation states. In this respect it fulfillsa similar role to other bodies connected to the Organization. Forexample, among its various functions, the International AtomicEnergy Agency is the watchdog for international treaties aimed atcontaining the unauthorized spread or distribution of nuclear weaponsor materials (Fasulo, 2004). It has the power to refer perceivedviolations to the UN Security Council. Given the seriousness of theissue area and the pivotal role played by the INCB within the field ofdrug control, it is imperative that the body therefore approaches itstasks in a sophisticated and balanced fashion within the frameworklaid out in the drug control Conventions.Such “name and shame” procedures are also bolstered by thepossibility of a drugs embargo. What can be described as the“nuclear option” exists under both the 1961 Single Conventionand the 1971 Convention 4 . Consequently, when highlighting tothe Parties, ECOSOC and the CND a perceived failure to carry outobligations under the Conventions, the INCB can recommend toParties that they “stop the import of drugs, the export of drugs, orboth, from or to the country or territory concerned” for a designatedperiod or until it is satisfied with the situation within the country orterritory. As implied above, with reference to the 1988 Conventionthe INCB’s powers are greatly reduced and no provision is madefor the Board to take steps against what it regards as a defaultingParty. While such sanctions have never been applied, they are apersuasive mechanism for encouraging what the Board considersto be treaty adherence. For example, in the years since the SingleConvention was ratified in 1968 the INCB has only threatened actionagainst nations five times. Sanctions were avoided after each countryINCB ANNUAL REPORTSBased on the activities described above, the INCB publishes anannual report. These are passed to ECOSOC through the CND withthe Parties to the Conventions permitting unrestricted distribution 5 .3 A similar process is outlined in the 1971 Convention on Psychotropic Substances,although this does not include the opportunity to involve the General Assembly.4 Article 19 of the 1971 Convention follows the precedent set by the Single Convention,but in line with the focus of the treaty refers to “particular psychotropic substances”rather than “drugs.”5 This is in accordance with Article 15 of the Single Convention. The annual reportof the Board is supplemented by technical reports on narcotic drugs and psychotropicsubstances. These give a detailed account of estimates of annual legitimaterequirements in each country as well as data on the licit production, manufacture, tradeand consumption of these drugs worldwide. The annual report is also supplementedby the report to the CND on the implementation of Article 12 of the 1988 Convention.This contains an analysis of measures Governments have taken against the diversion ofprecursors and essential chemicals and trends in illicit trafficking in these substancesworldwide (http://www.incb.org/incb/en/annual_ report.html )
5Released by the INCB every March, the reports provide theBoard’s assessment of the global situation during the previous year,incorporating data up to November of that year. This is to ensurethat “Governments are aware of existing and potential situationsthat may endanger the objectives of the international drug controltreaties.” The reports draw the “attention of Governments to gapsand weaknesses in national control and in treaty compliance andmakes suggestions and recommendations for improvements at bothnational and international levels.” (INCB 2005) “As an impartialbody” the INCB also tries to identify and predict dangerous trendsand suggests necessary measures to be taken.” (http://www.incb.org/incb/en/mandate.html)Since 1992, the first chapter of the annual report has been devoted toa specific drug control issue on which the INCB presents its conclusionsand recommendations “in order to contribute to policy-relateddiscussions and decisions in national, regional and international drugcontrol.” In the report for 2002, for example, chapter one focusedon Illicit Drugs and Economic Development and in 2003 the themewas Drugs Crime and Violence: The Microlevel Impact. Chapter oneof the report for 2004 focused upon the interaction between supplyand demand, emphasizing the need for a balanced and integratedapproach. After the thematic first chapter the reports examine theoperation of the international drug control system and provide adetailed continent-by-continent analysis of the world situation.The reports are among the key documents published within the UNdrug control system. In their in-depth analysis of the INCB, theauthors of the 1975 The Gentlemen’s Club: International Control ofDrugs and Alcoholnoted “The report is one of the media used by theBoard to exert moral pressure, and therefore contains many appeals,declarations, and expressions of approval and disapproval, as the casemay be” (Bruun, Pan & Rexed, 1975). Thirty-years on this remainsunchanged. The reports still do much to set the tone for drug policydebate within the international community. The process of exertingmoral pressure is also enhanced by the INCB’s place within the UNsystem. As discussed elsewhere, it can be argued that the image of theUN as a benevolent organization is a crucial factor in the functioningof the international drug control regime. It is true that in recent yearsthe UN has toned down rhetoric associated with drug control anddropped terms like “evil” and “scourge” from its vocabulary (Room,1999). Nonetheless, the regime continues to exert considerablepressure on nations to conform to the established norms of behaviourthrough the continuing prominence of language stating that thosedrugs defined as illicit are a “danger to mankind” and that theUN’s ideals consequently transcend the traditional concerns of theinternational community” (Bewley-Taylor, 2001). The potentialreputational implications of open deviation from such norms areoften important factors in determining how signatory nations to theUN drug control treaties formulate and apply domestic legislation6 For example, “Germany OKs Drug Injection Rooms: Heroin Users can Shoot-Up offthe Streets, unless the UN has its way,” Salon, March 13, 2000 and Imogen Foulkes,“UN Drugs Body Slams Switzerland,” Swissinfo/SRI, March, 4, 2004.(Andreas 1999, Bewley-Taylor 2003). While technically independent,the annual report being separate from any other UN body, theINCB certainly derives a considerable degree of moral authorityfrom its links to the Organization. It possesses a benevolent aura byassociation. A cursory glance of the press coverage around the releaseof the annual reports in March every year reinforces this view 6 .Indeed, President of the Board, Professor Hamid Ghodse, noted in1998, that since the reports receive “…good coverage in the media,the associated publicity helps to bring about or accelerate changesthat the Board would like to see in particular countries” (Ghodse,1998). As such, even without invoking any of the formal “namingand shaming” clauses within Article 14 of the Single Convention, theBoard is able to portray individual nations favourably or otherwise.“Impartiality” of the INCBIt is essential to remember that as the monitoring body for theimplementation of the drug control treaties, all INCB output,especially the annual reports, is written or stated within the contextof the Board’s own interpretation of those treaties. After all, as itsVice-President pointed out in 1971, the Board is not merely a body“for the mechanical recording of statistics; a computer could fulfilthat role” (Bruun, Pan & Rexed, 1975). Due to the ambiguities andflexibility that exist within the drug control treaties, the INCB’sperspective is by no means universal, however. Thus, although itis seen to be independent, refers to itself as “impartial” and theSingle Convention gives it authority to act should, as noted above,it have “objective reasons (emphasis added) to believe the aims ofthis Convention are being seriously endangered,” it is difficult forthe Board ever to be a truly neutral body. Consequently, as will beshown, disagreements sometimes arise when the INCB makes whatare in effect normative judgments on national circumstances visà-vistreaty compliance and recommends remedial measures whenit considers them necessary. It is plausible to argue, therefore, thata certain amount of tension between nation states and the Boardis inevitable within the UN drug control system. The continuinglyrigid interpretive position taken by the Board in recent years, forexample, has meant a sometimes strained relationship with some ofthose nations currently choosing to interpret the Conventions from aless prohibitive perspective than the 13-member body. Conversely,it seems likely that a more experimentalist view of the Conventionsfrom the Board would generate disquiet among countries wishingto see a strong prohibitionist steer from the INCB. Fluctuations inthe direction of drug policy within nation states thus combine withthe Board’s changing stance on the treaties to ensure that universalapproval of all the contents and recommendations within the annualreports and other statements is unattainable.Weaknesses with recent annual reports.That said, the operation of the Board within the internationaldrug control system is greatly dependant upon the overall qualityof the annual reports. For the system to function as intended,what is ultimately a subjective assessment of treaty complianceneeds to be supported by a uniformly accurate description of
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Watchdog or Guardian of the UN Drug Control Conventions?

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